Strickland v. Perruccio

• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Writing for the Court: DEARINGTON
• Citation: Strickland v. Perruccio, 246 A.2d 810, 5 Conn.Cir.Ct. 142 (Conn. Cir. App. Div. 1968)
• Decision Date: 02 February 1968
• Docket Number: No. CV,CV
• Parties: Justin STRICKLAND v. Joseph E. PERRUCCIO et al. 9-655-2551.

Page 810

246 A.2d 810

5 Conn.Cir.Ct. 142

Justin STRICKLAND v. Joseph E. PERRUCCIO et al.

No. CV 9-655-2551.

Circuit Court of Connecticut, Appellate Division.

Argued June 12, 1967.

Decided Feb. 2, 1968.

A. Robert Gordon, Middletown, for appellants (defendants).

Theodore J. Raczka, Middletown, for appellee (plaintiff).

DEARINGTON, Judge.

This action was brought on a common counts writ to recover the value of services rendered and materials furnished the defendants by the plaintiff in the installation of a septic tank system on property of the defendants as set forth in a bill of particulars. In their answer, the defendants deny the claim and by way of a counterclaim allege that the plaintiff failed to perform the work according to his agreement; that the installation was performed in an unworkmanlike manner; that the plaintiff broke his warranty of fitness; and that he did defective work and then abandoned it and it became necessary to hire another contractor to complete the original agreement. The defendant Joseph acted for both himself and the codefendant, his wife, and he will be hereinafter referred to as the defendant. In his reply, the plaintiff left the defendants to proof of their allegations.

The defendants have assigned error in the denial of their motion to correct the finding by adding thereto some fifty-one paragraphs containing facts claimed to have been admitted or undisputed. In addition, error is also claimed in the court's rejection of certain testimony as well as in all of the court's conclusions.

Although the defendants sought many corrections in the finding, it is apparent that the finding as rendered is adequate to review their assignments of error. Some of the assignments which were directed to the finding relate to evidence claimed to have been elicited from an expert witness for the defendants, Marvin L. Smith, of the state health department, who qualified as a sanitary engineer. The questions asked him by the defendants related to the application of certain regulations appearing in a pamphlet of the state department of health entitled 'Private Sub-Surface Sewage Disposal' and admitted into evidence. Some of the questions were of a hypothetical nature, while others dealt with possibilities. Still other questions sought answers of little probative value without there first having been evidence of the soil seepage rate, and there was no evidence of that. As to the effect of uncontradicted testimony of an expert, see Chazen v. City of New Britain, 148 Conn. 349, 352, 170 A.2d 891, and cases cited in Holden & Daly, Connecticut Evidence § 118c.

It appears that the defendants were attempting to show that the plaintiff in some measure violated the state health code and that such conduct was negligence per se. Parenthetically, it might be noted that the counterclaim contains no allegation relating to a violation of the health code; however, the evidence appears to have come in without objection by the plaintiff. Perhaps the most enlightening evidence on this matter was elicited from Smith on direct examination. He was asked a hypothetical question which included physical characteristics similar to those of the locale, and the question sought an answer as to the applicability of regulations of the health code in the installation of a sewage disposal system under the conditions described. The witness answered: 'In accordance with the regulations, any part of a subsurface sewage disposal system must be at least 10 feet from the lot lines. In this particular case and which would look to be simplified for a statement, let's talk about a 16 percent grade instead of a 100 foot in 600 foot grade. There is nothing in the regulations that would prohibit the installation of the seepage area on this type of a lot providing ground suitable * * * the necessary distance relative to lot lines can be maintained and that as a matter of installation for proper functioning, one would instal a curtain drain on the west side of the lot to intercept any surface drainage that might be coming down the 16 percent slope from the adjacent ground. It would appear that in the absence of such a drain, difficulty might then be encountered with the satisfactory operation of a seepage area, be it trenches, bed or leaching pit.' The witness also testified as to the distinction between a permit town and a nopermit town and stated, 'I am referring to a building permit; no building permit is issued unless the method of sewage disposal has been approved by the local director of health or his agent.' The court found a building permit had been obtained by the defendant. Upon such evidence as this, it cannot be said that the court erred in denying the defendants' requests to correct the finding to accord with the defendants' theory that the plaintiff failed to conform to the minimum requirements of the state department of health.

The finding, which is not subject to correction, indicates that in the spring of 1964 the defendants were in the process of building a dwelling house on a lot owned by them which had a 100-foot frontage and a depth of 220 feet. The lot was at or near the foot of a slope of 16 degrees, consisting of a rise in grade westward of 100 feet in a distance of 600 feet. The plaintiff was initially hired to bring in fill. Thereafter, the defendant requested him to instal a septic tank system. There were no plans or specifications, and it was understood by the parties that the plaintiff would perform the work as he thought best. A building permit was obtained by the defendant. The plaintiff was engaged in the business of excavation and also installing septic tank systems in the area. He had installed many systems and was familiar with the state regulations as contained in the department of health publication entitled 'Private Sub-Surface Sewage Disposal,' dated May, 1964, and then in effect. Whenever possible he followed the state regulations. No soil test was made, and the defendant was warned by the plaintiff that he, the defendant, had a potential trouble spot because of poor drainage. The plaintiff recommended two systems, a small 300-gallon tank system including a trench 3 feet...